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When parents disagree, who gets the final say?

On behalf of Bartholomew & Wasznicky LLP posted in Child Custody on Wednesday, January 17, 2018.

We are several days into the New Year now. For children, the holiday season is well in the past. Their minds are focused on the future. Many students already have ideas about warmer weather and fun plans for spring break. If you have teenagers of the driving age, they might be asking about trips that don't involve you.

With the newfound freedom of a car, teens tend to think about other kinds of freedom. Your teen may start asking about whether they can take a trip with their friend's family or without adult supervision of any kind this year. Letting them take this first trip is a huge decision for parents.

When you are divorced or unmarried parents, who gets the final say in this type of decision?

'Custody' is about more than where the child lives

People often assume that the term custody refers to where a child will live. While this is true, it is only half of the equation. There are two aspects of custody under California Law: physical and legal custody.

Physical custody is the well-known piece of the puzzle. It is the legal term that designates how much time and when the child will spend with each parent.

Legal custody is the other piece. This is the term that designates the authority to make important decisions in the child's life.

A judge can order either physical or legal custody as either joint or sole. For instance, parents could have joint legal custody (and have to consult one another/make decisions together) while only one parent has sole physical custody/significantly greater parenting time.

What types of decisions does legal custody cover?

Legal custody covers important decisions, ones that affect the health, education and welfare of the child. These are things such as:

Whether a child attends public or private school

Whether a child will be baptized or confirmed

If a child can or should see a therapist, and which one

If a child will receive tutoring at an after-school learning center

Whether a child should have their tonsils removed

If the child will be allowed to play traveling soccer

If a child will be allowed to go to band camp

And you bet, legal custody can also cover whether a child is allowed to travel anywhere for spring break, whether or not that trip involves adult supervision.

What if we have joint legal custody and can't agree?

Parents are never going to agree on every life decision. Even parents who can work together may have extremely different feelings on how their children should be raised. How do parents in this situation find resolution when neither has "the final say"?

When you are creating your custody and visitation agreement, it is important that you think about how you may want to handle joint legal custody.

Define situations that require mutual consent: You don't want to have to call the other parent for every decision nor do you want to have confusion over which decisions might be considered "important." For instance, if you think that introducing a new partner is important, write it down (Family Code 3083). Day to day decisions are usually left to the parent having the children on that day.

Define how you will resolve disputes: You want to think about the process for resolving disputes. Think about disputes generally, like resolving them by consulting with an expert and relying on their opinion. You can also think about disputes as specific issues. For instance, is religion much more important to one parent? You can designate that parent as the one with final say over religious decisions. As a last resort, you can go to custody mediation or submit it to a judge if mediation should fail (Family Code 3089).

Keep in mind that the court wants parents to stay out of court. The more thought you put into an agreement before finalizing it, the more helpful it will be after it has been finalized.

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